Andy McCarthy, former assistant U.S. attorney, responds to Judge Bates' ruling yesterday that three detainees at Bagram have the right to challenge their detention in U.S. Courts:
Yesterday, K-Lo mentioned the ruling by the federal court in D.C. that alien enemy combatants in Afghanistan — and, by logical extension, anywhere on Planet Earth where the U.S. military fights and captures territory — have a U.S. constitutional right of access to our courts to challenge their detention by our forces in a war that our representatives have overwhelmingly authorized our commander-in-chief to prosecute. If this ruling stands (and I think there's a very good chance it will), we have finally arrived at what my friend Cliff May has dubbed "CSI Kandahar." To put it as mildly as I can, it's a disaster.
This is decidedly not what Bates ruled. What the decision says is that the U.S. cannot apprehend suspects from a third country and then transfer them to Bagram for the purposes of denying them due process. The ruling does not say that detainees captured in a zone of active military combat have Habeas rights. The detainees in question were not captured in a zone of active military combat; they were brought there and put in military detention because the military indeed has the authority to detain people captured on the battlefield. It's just that the three detainees in question were not captured "on the battlefield." It's not clear whether the Obama administration will appeal or not, but if they don't, they will have to face the task of distinguishing which detainees have what rights. In his ruling, Bates writes:
It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries -- far from any Afghan battlefield -- and then bring them to a theater of war, where the Constitution arguably may not reach. Such rendition resurrects the same specter of limitless Executive power the Supreme Court sought to guard against in Boumediene -- the concern that the Executive could move detainees physically beyond the reach of the Constitution and detain them indefinitely.
That seems quite clear to me. But then again, I bothered to read the decision.
-- A. Serwer
